Beruflich Dokumente
Kultur Dokumente
3d 360
Lawrence Katz, Katz & Kleinman PLLC, Uniondale, NY, for PlaintiffAppellant.
David M. Schultz, Hinshaw & Culbertson LLP (Matthew R. Henderson &
Nancy G. Lischer, on the brief), Chicago, IL, for Defendants-Appellees.
Before: CALABRESI, KATZMANN, and B.D. PARKER, Circuit Judges.
CALABRESI, Circuit Judge.
I. BACKGROUND
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On November 20, 2002, Greco received a debt collection letter (also known as
a "dunning letter") from the defendants. The letter, printed on Trauner, Cohen
At this time, no attorney with this firm has personally reviewed the particular
circumstances of your account. However, if you fail to contact this office, our
client may consider additional remedies to recover the balance due.
If you have any questions regarding this matter, please contact this office at
404.233.1900 or toll free at 1.888.696.1900 between the hours of 8 A.M. and 9
P.M. on Friday, and 8 A.M. to 2 P.M. on Saturday.
You are hereby given notice of the following information concerning the above
referenced debt.
1. Unless, within 30 days after receipt of this notice you dispute the validity of
the debt, or any portion thereof, the debt will be assumed to be valid by the
creditor and by this Firm.
2. If you notify us in writing within said 30 days that the debt, or any portion
thereof is disputed, we will obtain verification of the debt, or a copy of any
judgment against you, and we will mail such verification to you.
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3. In addition, upon your written request within said 30 days, this Firm will
provide the name and address of the original creditor if the original creditor is
different from the current creditor.
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4. This firm is attempting to collect a debt on behalf of the creditor and any
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The letter was not signed by any individual attorney. The firm's name,
however, was printed as a signature block.
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On July 23, 2003, plaintiff filed suit against defendants (both as a law firm and
as individuals), alleging that the above-mentioned communication violated the
FDCPA. Specifically, Greco alleged that the letter violated two separate
FDCPA provisions.1 First, he asserted that the letter misleadingly represented
the level of attorney involvement, thereby violating, in violation of 1692e's
general ban on deceptive practices in connection with debt collection,
1692e(3)'s ban on falsely representing that an individual is an attorney, and
1692e(10)'s ban on deceptive means to collect a debt. Second, Greco claimed
that the letter's disclosure statement because it stated that the debtor's failure
to dispute the debt would result in both the debt collector and the creditor (as
opposed to the debt collector alone) assuming the debt to be valid misled
debtors as to their rights, in violation of 1692g. Greco requested statutory
damages for each purported violation of FDCPA. He also sought to certify a
class of persons receiving similar debt collection letters.
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The district court determined, as a matter of law, that the letter was not
misleading in its representation of attorney involvement, or in its explication of
the debtor's rights, and hence that it could not support Greco's claims for relief
under FDCPA. First, the district court determined that the letter did not misstate
the level of attorney participation, because the letter prominently stated in
normal typeface that "[a]t this time, no attorney with this firm has personally
reviewed the particular circumstances of your account," and merely advised the
creditor that "if you fail to contact this office, our client may consider additional
remedies to recover the balance due." Thus, the district court reasoned, even
the least sophisticated of debtors would understand that, while this was a letter
from a law firm, no attorney had specifically examined the recipient's account
information, and hence no attorney had yet recommended filing a lawsuit
against the creditor. Second, with respect to the disclosure statement, the court
noted that the letter's language almost identically tracked the words of the
FDCPA itself. The only change was the statement that the creditor, in addition
to the debt collector, would assume that the debt was valid if the debt collector
was not notified of a dispute within 30 days. The court concluded that this
statement would not mislead recipients, because the letter's language "does not
create confusion about the debtor's right to contest the debt within thirty days."
Having reached these conclusions on the basis of the complaint and the
attached debt collection letter, the court dismissed the complaint in its entirety.
This appeal followed.
II. DISCUSSION
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Id. at 1321 (emphasis added). He also cites Miller v. Wolpoff & Abramson,
L.L.P., 321 F.3d 292 (2d Cir.2003), in which several law firms were sued after
sending a debt collection letters on firm letterhead, without any review of the
recipient's individual case. In Miller we recognized that "[a]lthough there is no
dispute that [the defendant law firms] are law firms, or that the letters sent by
those firms were `from' attorneys in the literal sense of that word, some degree
of attorney involvement is required before a letter will be considered `from an
attorney' within the meaning of the FDCPA." Id. at 301. Because "the letters
sent by [the defendant law firms] were form letters generated by a
computerized debt collection system without any meaningful attorney
involvement in the process," id. (emphasis added), we there vacated an award
of summary judgment to the defendants. Greco argues that here, as in Clomon
and Miller, the letter's presentation, its letterhead, and its signature block overrepresented, in violation of 1692e, the level of attorney involvement.
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precedents demonstrate that an attorney can, in fact, send a debt collection letter
without being meaningfully involved as an attorney within the collection
process, so long as that letter includes disclaimers that should make clear even
to the "least sophisticated consumer" that the law firm or attorney sending the
letter is not, at the time of the letter's transmission, acting as an attorney.
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In Miller and Clomon, we established that a letter sent on law firm letterhead,
standing alone, does represent a level of attorney involvement to the debtor
receiving the letter. And if the attorney or firm had not, in fact, engaged in that
implied level of involvement, the letter is, therefore, misleading within the
meaning of the FDCPA. But of course, the implied level of attorney
involvement is just that implied. The letter's representation to the debtor is a
consequence of the letter's content and presentation. And so, in these cases, we
observed that a properly constructed letter with different presentation or content
might connote far less actual attorney involvement, thereby satisfying the
FDCPA's requirements. See Miller, 321 F.3d at 301 ("`The use of an attorney's
signature implies at least in the absence of language to the contrary that
the attorney signing the letter formed an opinion about how to manage the case
of the debtor to whom the letter was sent.'") (quoting Clomon, 988 F.2d at
1321) (emphasis added).
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Greco also asserts that the defendants violated the FDCPA by inadequately and
III. CONCLUSION
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In light of the letter's language, the district court was correct to determine, as a
matter of law, that no FDCPA claim could lie. The judgment of the district
court is AFFIRMED.
Notes:
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A debt collector may not use any false, deceptive, or misleading representation
or means in connection with the collection of any debt. Without limiting the
general application of the foregoing, the following conduct is a violation of this
section:
******
(3) The false representation or implication that any individual is an attorney or
that any communication is from an attorney.
******
(10) The use of any false representation or deceptive means to collect or
attempt to collect any debt or to obtain information concerning a consumer.
******
1692g. Validation of debts
(a) Notice of debt; contents. Within five days after the initial communication
with a consumer in connection with the collection of any debt, a debt collector
shall, unless the following information is contained in the initial
communication or the consumer has paid the debt, send the consumer a written
notice containing ...
(3) a statement that unless the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector....
15 U.S.C. 1692e, g.
2
InClomon, the debt collection letter was signed (digitally, as part of a mass
mailing) by a particular attorney, who stated that "[y]our account was referred
to us with instructions to pursue this matter to the furthest extent we deem
appropriate . . . . Acting as General Counsel for NCB Collection Services, I
have told them that they can lawfully undertake collection activity to collect
your debt." Clomon, 988 F.2d at 1317 (omission in original). The obvious
implication of the letter was that the undersigned attorney had personally
reviewed the debtor's file, and had suggested a legal course of action to recover
the debt. In Miller, the letter stated, "Please be advised that we represent the
above-named creditor who claims you have a delinquent balance as stated
above. After you have read the important notice on the reverse side of this
letter, if appropriate please call our office to resolve this matter. When paying
the balance in full or if you are unable to call our office, check one of the
options below and return the bottom portion of this letter in the self-addressed
envelope provided for your convenience. Very truly yours, WOLPOFF &
ABRAMSON, L.L.P." Miller, 321 F.3d at 296. Significantly, the debt
collection letter in Miller contained no language whatsoever to mitigate the
impression that an attorney had evaluated the debtor's case with an eye towards
filing a lawsuit.